Just so everyone is clear: as a matter of international law, one of the requirements for a blockade to be legal is that it has to be effective. That is to say, the blockade must actually work in stopping all or most shipping into the blockaded area. So, to the extent Israel wants to maintain its blockade, it has to stop all ships trying to breach it -- including those under Turkish military guard.

Meanwhile, Turkey also is promising to take the matter of Israel's blockade to the ICJ. If I were Turkey, and I was set on the course of escalation that they seem to be pursuing, this is exactly what I'd do too. Part of what makes the Palmer Report so notable is its rarity -- a relatively decisive victory for Israel in the international arena. It is a case of Turkey losing a bet where the odds were strongly in their favor. So if I'm them, why not return to the table? The ICJ has not been historicallyfriendly territory for Israel (and in particular, like the UNHRC, it tends to play fast and loose with proportionality claims). If Turkey floods the zone with enough authoritative-sounding international legal opinions, the Palmer Report will become an anomaly and easily dismissed.

But of course, this sort of escalation is dangerous -- even Ban Ki-Moon can sense it. We're getting past the point where this is mere posturing. It is difficult to overstate just how wildly irresponsibly Turkey is behaving. You won't find a more fervent critic of the Israeli foreign ministry than I, but in this case they've made reasonable efforts at rapprochement that Turkey has rejected over and over again. The match is being held to the fuse, and Turkey seems bent on setting the whole region alight.

Friday, September 02, 2011

In the wake of a comprehensive UN report which largely, though of course not entirely, vindicated Israel's conduct with respect to the Gaza blockade and the flotilla incident, Turkey has expelled the Israeli ambassador. It also announced that it considered the Palmer Report "null and void", which makes sense, as the report sided with Israel over Turkey on most of the key points and its recommendations for reconciliation (a statement of regret) were considerably closer in line with what Israel had offered than what Turkey had been willing to except.

Turkey has a habit of being more than a little childish in the international arena, so I can't say I'm surprised that their response to a major defeat in the UN is to simply announce that they're ignoring it. Well, let me be a little more charitable: most UN states ignore UN recommendations that go against their interests or conduct, and I can hardly fault them for doing so given that the bodies in question generally lack basic credibility. What makes Turkey unique isn't that it is rejecting a report that went against them; what makes them unique is their utter unwillingness to negotiate in good faith. They weren't looking for a route towards rapprochement, they were looking for a path towards escalation. There were loads of ways Turkey could have indicated its dissatisfaction with the Palmer Report that didn't entail expelling the ambassador of a friendly nation. As is per usual, it isn't Israel who decided to up the diplomatic ante with its neighbors. Turkey made a conscious decision that it wanted to turn a fissure into a chasm, and it acted accordingly.

Thursday, September 01, 2011

The United Nation's long-awaited Palmer Report on the Gaza flotilla incident has now been released, and, from Israel's perspective it has to be seen as a major win. The committee firmly decides that the blockade is legal and notes that an essential element of a legal element is that it has to be enforced consistently (which means intercepting folks trying to breach it, and can entail forcibly boarding resisting vessels). It also notes that the the Israeli soldiers who boarded the Mavi Marmara did face violent resistance. The committee does believe that Israel used excessive force in boarding the vessel and in not pursuing more non-violent interception techniques prior to its forcible boarding action. Statements from the Israeli and Turkish representatives to the commission appended at the end are revealing: the Israeli representative quibbles with the excessive force findings, but the Turkish representative is forced to disassociate himself from virtually the entire document.

I think the committee report is generally solid. It's analysis on the overall legality of the blockade is unquestionably superior to that forwarded by the UNHRC's report, which (and this is true regardless of one's ultimate perspective on the conflict) was frankly an embarrassment to the legal profession (how one even tries to undertake a proportionality analysis without even mentioning the objective in question, see paras. 51-61, compare Palmer Report pp. 38-45, is a mystery). So that's good.

Of course, I remain exceptionally dubious of the utility of these reports or the international law frame at all. The Palmer Report had been delayed several times because everyone believed it would only hurt rapprochement efforts between Israel and Turkey (Turkey is hell-bent on a full apology and an end to the blockade, which Israel is far less likely to do now that a high-profile commission has deemed the blockade legal and vindicated many, albeit not all, of its actions). Folks opposed to Israel's actions will simply cite the UNHRC report instead. Israel knows that, which limits whatever benefits it might reap from citing the Palmer Report. The conflict is political, and will be resolved politically. Whatever formal authority the Palmer Report has (and I'm not sure it has much anyway), formalism is not and should not be the primary lens for examining the issues in this controversy.

UPDATE: This older post by Kevin Jon Heller offers a good foil for some of what I'm trying to say here. Unlike the UNHRC opinion, Professor Heller provides a solid, well-reasoned argument for why the blockade is illegal (which isn't to say I'm necessarily persuaded by it; indeed, Professor Heller is admirably forthright about his uncertainty on the question). Professor Heller's basic claim is that the conflict between Israel and Hamas is not of an international character, and that international law does not contemplate the use of blockades in non-international conflicts.

The Palmer Report considers and rejects that point, instead holding that the conflict between Israel and Gaza is, for all intents and purposes, "international" for the purpose of the law governing blockades:

The Panel now turns to consider whether the other components of a lawful blockade under international law are met. Traditionally, naval blockades have most commonly been imposed in situations where there is an international armed conflict. While it is uncontested that there has been protracted violence taking the form of armed conflict between Israel and armed groups in Hamas-controlled Gaza, the characterization of this conflict as international is disputed. The conclusion of the Panel in this regard rests upon the facts as they exist on the ground. The specific circumstances of Gaza are unique and are not replicated anywhere in the world. Nor are they likely to be. Gaza and Israel are both distinct territorial and political areas. Hamas is the de facto political and administrative authority in Gaza and to a large extent has control over events on the ground there. It is Hamas that is firing the projectiles in Israel or is permitting others to do so. The Panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel’s right to self-defence against armed attacks from outside territory. In this context, the debate on Gaza's status, in particular its relationship to Israel, should not obscure the realities. The law does not operate in a political vacuum and it is implausible to deny that the nature of the armed violence between Israel and Hamas goes beyond purely domestic matters. In fact, it has all the trappings of an international armed conflict. This conclusion goes no further than is necessary for the Panel to carry out its mandate. What other implications may or may not flow from it are not before us, even though the Panel is mindful that under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others. (p. 41, para. 73)

This sort of analysis appeals to my legal pragmatist streak generally. And specifically with it is hard to argue against the Palmer Report's conclusion that the conflict bears the "trappings" of an international one in terms of actually describing the hostilities between Israel and Gaza. Even to the extent he's right, Professor Heller's analysis is another example of formalism and categories triumphing over descriptive and normative realities. That's not a strike against Professor Heller -- he's doing what lawyers do. And perhaps in a world where international law was a stronger force and it didn't seem like all aspects of the Israeli/Palestinian conflict were treated as sui generis anyway, it might be more important to rely on staid legalisms (though I'm not sure why participants in non-international conflicts should never be allowed to resort to blockades anyway. Their omission seems more a function of the rarity of situations where one would make sense -- Israel/Palestine really being "unique" in this regard -- than the result of some normatively sensible distinction). But that isn't our world, and in the world we live in, the Palmer approach seems far, far more reasonable.

Monday, August 29, 2011

The Volokh Conspiracy currently is hosting Timothy Groseclose, author of a book purporting to quantify liberal bias in the media. Basically, what he does is attempt to measure by "objective" (I'm going to problematize that below) criteria, how liberal or conservative a given media outlet is, then compare it to a perfectly "centrist" position. The upshot is that the media, under Groseclose's analysis, leans left -- excepting some niche conservative publications (like The Washington Times).

Groseclose provides three different metrics by which one could "objectively" measure the relative bias of media outlets. The first is with reference to think tanks, the second talks about "loaded phrases" (like "death tax" versus "estate tax"), and the third looks at the mention of "equally true facts", one liberal-leaning, one conservative-leaning. The media "scores" on this are then compared to a normalized ranking of Senators and Congressmen, so, we could say, the way The New York Times uses these think tanks, phrases, and facts, is most closely akin to that of Sen. Joe Lieberman (I-CT).

This sort of empirical analysis isn't really my area, but even I spotted some problems (actually, while running a google search for this post, I discovered I spotted some problems with the book's predecessor article in the first month of this blog. Ah, the memories). First, there are some question design aspects that worried me when I took my own "PQ" quiz (it labeled me as liberal -- which is absolutely accurate -- but I have no idea why the questions informed me how Democrats and Republicans voted except to push the data to extremes). Second, I don't think the metric disaggregates enough: my own line is that the media is socially liberal, economically moderate, and hawkish on foreign policy, and that hypothesis isn't really examined.

But the most gaping one is that it doesn't tell us who is leaning towards whom. A relative affinity between what think tanks the media cites, and what think tanks a Democratic Senator cites, may show the media is biased towards liberals. But it could equally show that liberals are more likely to cite independent, dependable think tanks of the sort relied upon by the media. In other words, we can use politicians as independent variables and use them to judge the media. Or we can use the media as an independent variable and use it to judge the politicians. Groseclose's methodology doesn't have us distinguish.

And there's a solid case to be made that the latter is a better explanation. Take Groseclose's own example on the "loaded phrases" front: "death tax" versus "estate tax". Republicans tend to use the former, Democrats the latter. Hence, under Groseclose's methodology, if the media tends to use the latter, it is exhibiting liberal bias. But another explanation is simply that "estate tax" is considered the more neutral, explanatory term, which is why the media uses it. "Estate tax" is, in fact, not loaded in the way that "death tax" is (or something like "plutocrat tax" would be). Practitioners don't talk about the "death tax", they talk about the estate tax. "Estate tax" is the name of the term in U.S. tax code dating back to 1916, "death taxes" refer to something else entirely. The term "death tax" didn't gain any mainstream traction until the Gingrich speakership, when it was part of a specific effort to muster up voter anger against the "estate tax".

Given all that, it makes perfect sense for the media to favor "estate tax" over "death tax". Groseclose's methodology would have us adopt the absurd conclusion that, because both the media and liberals (but not conservatives) refer to the estate tax by its historical and official name, that's a problem with the media's objectivity. One could hardly impoverish the meaning of "media objectivity" more if one tried.

What is most weird about Groseclose's methodology is that, for all its protestations of scientific rigor, it is really dependent on a very blunt sort of relativism. The methods he use only make sense if one effectively believes there is no way of determining which think tanks or more reliable or less reliable, which phrases are neutral and which ones are inciting, which facts are salient and which are irrelevant. Why not? Well, probably because the most obvious way of measuring that would be with reference to how a supposedly neutral arbiter, like the media, and then instead of concluding that there exists a liberal media bias, we instead conclude that, as the saying goes, "reality has a well-known liberal bias."

But if we dispense with the notion that we can evaluate the neutrality of various phrases or researchers on their merits, then it's all politics -- liberal ideas and conservative ideas, liberal phrases and conservative phrases, liberal facts and conservative facts. And the media tends to align itself with the liberals. If there's no truth behind it, then that's no strike against the right. It just marks the media as an adversary.

The forthcoming UN General Assembly vote on admitting Palestine as a state is perhaps the highest profile example of the Netanyahu administration's catastrophic failure at managing both Israel's perception abroad and crafting any sort of progress on resolving the Israeli/Palestinian conflict at home. To be sure, at this stage in the game, there is little any Israeli government could do to stop the vote (though the American threat to slash aid to Palestine might). But this is not something that came up out of nowhere -- it is the upshot of months of blunders and unforced errors by the Keystone Cops which comprise the current Israeli cabinet. I cannot think of an Israeli government in my lifetime which has done more damage to the state of Israel than this one.

But anyway. One of the more 7-dimensional chess worries to emerge from the statehood vote was claims by Palestinian legal adviser Guy Goodwin Gil that the statehood vote could imperil various claims made by Palestinians who do not currently reside in the West Bank or Gaza (the "diaspora", so to speak). In essence, the current state of affairs has the PLO as the recognized representative of the Palestinian people (wherever they live). "Palestine", as a state, would take over that role in the United Nations. The problem, though, is that the state of Palestine has little basis for claiming the right to represent Palestinians who aren't inside its borders (and, to the extent it wants to push for a "right of return" to Israel proper, Palestinians who have no desire to move inside its borders).

Another Palestinian legal adviser, my Illinois colleague (though we have not yet met) Francis Boyle, argues that these worries will not come to pass. His reasons are a little vague, but no matter -- I suspect he is correct. But the reasons why have nothing to do with "all the legal and constitutional technicalities that were originally built into the Palestinian Declaration of Independence," or, for that matter, technicalities in international law.

For starters, it is hardly unknown for states to maintain concern about the status and rights of people -- even non-citizens -- outside their borders that the state nonetheless possesses an affinity towards. Mexico, for example, cares quite a bit about the rights of Chicana/os in the United States -- including those who are United States citizens. That is part and parcel of having nation-states in the first place where, in addition to (hopefully) promising some sort of open, liberal political order, states also hold themselves out as the homeland of Mexicans or the Irish or Jews or Palestinians.

But more importantly, the entire debate relies on formal notions of the structure of international law and the effect international legal machinations of which I'm dubious exert any strong force. Relying on formal rules of international law to exert any constraining force on what international law is said to be in politically "hot" conflicts is almost invariably a mistake. To the contrary, the international legal system is overwhelmingly results-oriented, and in particularly it fervently desires results that redound to the benefit of Palestinians (and to the disadvantage of Israelis). To the extent there might be precedents which seem to imperil a given Palestinian interest, they'll be modified accordingly or cast aside. In the worst case, an entirely sui generis regime will be carved out to accommodate the dissonance (see, e.g., the UNRWA).

To be honest, though, in a sense this is how it should be. Not the part about international law being entirely results-oriented (though honestly, I'm mostly an international law skeptic even conceptually at this point -- it is not a system I think presents a particularly prime candidate for meaningful reform, so I prefer not to try). But the various claims of Israelis and Palestinians shouldn't be extinguished by technocratic reshuffling of categories, and it bothers me how often people try to play this game. One sees it with respect to Jews when folks alternatively label them a "religion", "race", or "ethnicity" depending on which one best defeats any particular Jewish political claim. The idea that the category system might not map onto the territory -- might simply be inadequate to encompass the Jewish experience and respond to just Jewish political claims -- is pushed aside as Jews are forced into a legalistic game whose rules, at best, we didn't write and at worst were written precisely to maintain Jewish subjugation.

And that's silly. I'm no fan of a Palestinian right of return, and everybody knows that it will not be a part of any final peace agreement except perhaps as some limited symbolism. But that end is and should flow out of a negotiated settlement -- it should not be the result of some legalistic trap.

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